Citation Nr: 1758043 Decision Date: 12/14/17 Archive Date: 12/28/17 DOCKET NO. 06-33 090 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an initial compensable rating for right hip tendonitis. 2. Entitlement to an initial rating in excess of 10 percent for right ankle tendonitis. 3. Entitlement to an initial compensable rating for lateral epicondylitis tendonitis of the right elbow prior to June 25, 2014 and in excess of 10 percent thereafter. 4. Entitlement to a rating of 10 percent for right knee strain with patellofemoral syndrome. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Gregory T. Shannon, Associate Counsel INTRODUCTION The Veteran served in the Army National Guard from March 1981 to August 2004, which included periods of active duty training and inactive duty training. The Veteran had active service in the United States Army from May 1981 to August 1981 and from February 2003 to July 2004. These matters come before the Board of Veterans' Appeals (Board) from February 2013 and March 2015 rating decisions by the Department of Veterans Affairs, Appeals Management Center located in Washington, DC and Regional Office (RO) in Columbia, South Carolina. Since that time, jurisdiction has transferred to the RO in Seattle, Washington. In a March 2014 decision by the Board, the issues of initial compensable evaluations for disabilities of the Veterans right hip, right knee, right ankle and right elbow were remanded for issuance of a Statement of Case for these issues. The Board was unaware at the time that a Statement of Case was issued shortly before the Board's decision (Board decision issued five days after Statement of Case). A VA Form 646 was subsequently received on these issues within 60 days of the SOC. The Board finds that the 646 was adequate in lieu of a VA Form 9 to perfect the appeal. The issues of rating the Veteran's right hip, ankle and elbow disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The AOJ has granted the Veteran a 10 percent rating for her right knee strain with patellofemoral syndrome. 2. The Veteran, through her representative, has stated that her appeal with regard to her right knee was granted in full in rating decisions dated March 13, 2014 and June 7, 2017. CONCLUSION OF LAW There is no alleged specific error of fact or law with regard to the Veteran's right knee disability rating appeal. 38 U.S.C. § 7105(d)(5) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION When there is no case or controversy, or when a once live case or controversy becomes moot, the Board lacks jurisdiction. See Bond v. Derwinski, 2 Vet. App. 376, 377 (1992); Mokal v. Derwinski, 1 Vet. App. 12, 15 (1990). In a March 2014 rating decision, the RO granted a 10 percent rating for right knee strain with patellofemoral syndrome effective July 18, 2004 through November 5, 2012, and a noncompensable rating thereafter. In a June 2014 statement, the Veteran stated her right knee rating was wrong and requested a change to 10 percent. See June 2014 VA Form 21-0958, Notice of Disagreement. In a June 2017 rating decision, the RO granted a 10 percent rating for right knee strain with patellofemoral syndrome effective November 6, 2012. Subsequently, in a December 2017 statement, the Veteran's representative stated the Veteran's appeal was granted in full. The Veteran has limited her right knee rating appeal to a particular disability rating which is less than the maximum disability rating allowed by law. See AB v. Brown, 6 Vet. App. 35, 39 (1993). Given that the 10 percent rating expressly sought by the Veteran has been granted, there is no "controversy" or "issue" currently before the Board as the claim has been resolved in the Veteran's favor. See Shoen v. Brown, 6 Vet. App. 456, 457 (1994) (a case or controversy must exist in order to obtain appellate review). The law provides that the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d)(5) (2012). As the Veteran has received a full grant of the benefit sought, for her right knee strain with patellofemoral syndrome, there remains no error of fact or law for the Board to address, and the appeal must be dismissed. ORDER The claim of entitlement to a rating of 10 percent for right knee strain with patellofemoral syndrome is dismissed. REMAND The Veteran last underwent VA examinations to determine the severity of his hip disability in February 2016, his elbow disability in March 2015, and his ankle disability in November 2012. Those examinations were not complaint with 38 C.F.R. § 4.59 (2017) and the United States Court of Appeals for Veterans Claims (Court) decision in Correia v. McDonald, 28 Vet. App. 158 (2016). In Correia, the Court held that to be adequate, a VA examination of joints must, wherever possible, include testing that permits an adjudicator to assess the effect of painful motion. Such an examination should include range of motion tests for both active and passive motion, in weight-bearing and non-weight-bearing circumstances and, if possible, the same testing of the opposite undamaged joint in compliance with 38 C.F.R. § 4.59 (2017). See Correia, 28 Vet. App. at 165, 169-70. Because the noted examinations do not comply with Correia, new examinations are warranted. Accordingly, the case is REMANDED for the following action: 1. Obtain outstanding VA records of evaluation and/or treatment since November 2014. 2. Schedule the Veteran for a VA examination to determine the current nature and severity of his right hip disability. The claim file should be made available to and reviewed by the examiner. Range of motion testing must be performed where possible. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of the opposite undamaged joint. If the examiner is unable to conduct the required testing, he or she should explain the basis for this decision. All findings should be reported in detail. 3. Schedule the Veteran for a VA examination to determine the current nature and severity of his right elbow disability. The claim file should be made available to and reviewed by the examiner. Range of motion testing must be performed where possible. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of the opposite undamaged joint. If the examiner is unable to conduct the required testing, he or she should explain the basis for this decision. All findings should be reported in detail. 4. Schedule the Veteran for a VA examination to determine the current nature and severity of his right ankle disability. The claim file should be made available to and reviewed by the examiner. Range of motion testing must be performed where possible. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of the opposite undamaged joint. If the examiner is unable to conduct the required testing, he or she should explain the basis for this decision. All findings should be reported in detail. 5. After undertaking any additional development deemed appropriate, adjudicate the claims in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs